Thursday, December 14, 2006

Another plea bargain - Churchill

Another plea bargain and confusion in the courtroom....
Churchill sentencing continued due to plea error


  1. It doesn't sound like an error, it sounds like the DDA stuck with
    youho's mess refused to do the deal youho gave his boss's old pal, Clanton, and the case was
    continued until Dr. Frankenstein could animate his own monster.
    The other question is why the judges keep letting this stuff happen. 17 stab wounds and probation is on the table?

    I wonder what youho would do if a cop got stabbed? Marry the defendant, I guess.

  2. 7:54 - it looks like the guy didn't even plea to a strike. There is no mention that he admitted to a special enhancement of "personally using a gun" and if he only pleaded to the 245 - it ain't no stinking strike.

    What a bunch of idiots down there.

    BTW when is our local news gonna start asking questions and looking at things like the minutes and complaint to see when (not if) "youwho" lies to them.

    come on press..i dare you!

  3. Stabbing someone 17 times on a public street is not such a big deal? Remember now knives are not really so bad either.

    WOW, will it ever end? I agree, a judge should have the balls to reject some of these soft pleas. And if the media wanted a good story they should check into the relationship of Gag's and Russ Clanton!

  4. If the press wrote about the Clanton/Gallegos link
    the paper would have to be in a plain brown wrapper

  5. How true. Or at least have some kind of warning on the outside, PG14 or R17 or whatever.

  6. Your PC 245(a)(1) comes in two flavors - assault with a deadly weapon and assault with force likely to produce great bodily injury. For reasons obscure to me, assault with a deadly weapon is a strike (PC 1192.7(c)(31).) but assault with force likely is not. Looking at the link, sounds as if dirtbag pled to a strike, 245(a)(1) to wit knife, but some enhancements were dismissed, although neither the TS or the ER ever cites codes so that one can figure this stuff out. Anyhow, the significant fact is that a lizard like Sanders is pleading his boy out to a strike. For retained counsel to plead a client out to a strike is a sign that he is not sanguine about a trial. Which means, maybe, letting dirtbag plead to only one count is more of a discount then he deserves.

  7. Pardon me, that should be a lizard like Clanton.

  8. Let's see what Wilson does with it.
    Let's see how youho argues at sentencing
    Let's see what Clanton says the DA said.
    Of course, it will all be in chambers, get the lines rehearsed, put on Kabuki for the public.

  9. the 245a1 is only a strike if he specifically admits a special allegation that he used a weapon. If not the 245a1 is not a strike. Since he is only looking at a possible 4 yr max term, then he obviously did not plead to the special allegation making it a strike or he would be facing 5 yrs.

    But hek, yougofree gets it wrong ALL OF THE TIME so whats new with this blown plea.

  10. As I stated in my post of 12/17/06, assault with a deadly weapon in violation of PC section 245(a)(1) is a serious felony pursuant to PC section 1192.7(c)(31); see also People v. Banuelos (2005) 130 Cal.App.4th 601, 605) It is not necessary to have the personal use of a weapon enhancement to make a 245(a)(1), deadly weapon, a strike. I put citations into my posts when I discuss the law for a reason. If 12:24 has any relevant authority in support of his or her position (that 245(a)(1) is not a strike without the personal use enhancement) then I would like to hear about it, as I am currently attempting to send at least one miscreant to prison for double the base based on a 245(a)(1), weapon. (I am a DDA in a county other than Humboldt)

  11. 245A1 IS NOT A STRIKE
    TRY READING 11192.7 AND , FOR

  12. for another overview see the 10/31 unpublished opinion

  13. Ok - idiot in another county..try reading 1192.7(c)(31) again as it only deals with a deadly weapon on a cop or firefighter. The appropriate subsection is (c)(23) BUT 245 is a with either a deadly weapon or with force likely to produce so if it is going to be treated like a a strike later on the defendant MUST admit that he personally used a deadly least the appellate court says so, but they could be mistaken. Did you read the decision that you just quoted. You should because it actually goes against what you posted and said that because 245a1 can be either a strike or non-strike, there must be PROOf oher than just hearsay in a report. The way that you get there is by having the defendant admit he used a deadly weapon. Of course it can be found by a jury at trial, or there can be a preliminary hearing transcript, but as Banuelos says...there gotta be more than just a passing reference...the People have to PROVE that his prior conviction qualifies as a strike.

    Are you a new prosecutor?

  14. is 2:43 pm Eric posting anonymously again or what.

    could 2:43 actually be posting on another county's time.....

  15. Well, 5:09, I was trying to be nice because many people find felony sentencing confusing. There was a time when a 245(a)(1) w/ deadly weapon was not a strike unless you could prove personal use of a deadly weapon or GBI (PC 12022.7). The simplest way to do that was with the enhancements. However, that changed in 2000 when 1192.7 was amended by ballot initiative. Sub (c) sub (31) was added, which lists "assault wth a deadly weapon, firearm, machine gun, assault weapon, or semi-automatic rifle or assault on a peace officer," etc... So assault with a deadly weapon OR assault on a peace officer etc. "And;" "or;" two different words you can look it up. The court in Banuelos case I cited recites that history, and then states: "A conviction for assault with a deadly weapon under section 245 subdivision (a)(1) now qualifies as a serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor." So I'm right and you are wrong. Nyaah Nyaah Nyaah. Your confusion may be due to the fact that 245(a)(1) is only a strike if it involves assault with a deadly weapon; assault with force likely is not a strike unless you have the enhancement. Which I talked about in my original post. That said, my point way back on Sunday night was that a defense attorney would not plead a guy out to a strike unless that was a better outcome then taking it to trial. And with 17 stab wounds maybe he doesn't deserve whatever discount he got from the DDA. However DDA views it, Clanton would rather plead boyo to a strike then try it, so maybe DDA should have tried the case. I am not Eric. I am allowed to do what I want on my breaks; sometimes I shop online at work too. Whether I am new or not depends on your perspective. I am a DDA III in my county, with a general felony load and back-up juvenile deputy. I try to do my best for the people who pay me and that includes knowing the law. I am not a supporter of Mr. Gallegos and I do not like the way he does things. I think letting a guy who stabs someone 17 times plead to one count of a 245(a)(1), even if it is a strike, is the craven act of a mooncalf who is bring my vocation into disrepute.


  16. Two things. The out of humboldt original post suggested strongly that a "bare" 245a1 is a strike. It
    is not, according to the 10/31 opinion listed above at 4:46 12/18.
    The stabbing of someone 17 times
    does involve great bodily injury
    and personal use, so it is clearly a strike no matter how you read the law.

  17. Reread the case 2:43 - it says that you cannot rely on the charge itself but need independent facts to have a 245(a)(1) as a strike. This is because it covers crimes that are both strikes and nonstrikes.

    you evidently are not a prosecutor as your post goes to a federal habeas case...why not just focus on the matter at hand.

    If Klien doesn't have him stipulate that this was a crime under 1192.7(c)(23) [not (31)] or if there is no preliminary hearing transcript that clearly shows that this is a strike, then there would be no way to impose the 20% limitation on credits or treat it as a strike WHEN he reoffends. As the case you cited abstract sheet is insufficient to prove that it is a strike.

    Can't you read?

    How's Texas?

  18. ps - yougofree is not a prosecutor. He is a defense attorney who got hired as a prosecutor and you should know the difference. You are aware that "" was his web site prior to being hired. For you to summarily dismiss that and say that no prosecutor would do this if you could get a better result in trial shows that you have a limited view on what is going on in Humboldt County.

    If you are a prosecutor, what county are you from, pray tell.

    Frankly, if you are a DDA3, with this limited view, then you need to wait a significant time to competently handle anything more than general felonies.

    Thanks for weighing in, albeit with a limited view on whats happening here.

  19. Excerpted from Banuelos opinion
    "Even under the amended law, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury".
    Because a conviction under section 245, subdivision (a)(1) could result from aiding and abetting another in an assault committed with a deadly weapon, or from personally committing an assault by means which were likely to cause great bodily injury, but which did not involve the use of a weapon or actually result in great bodily injury, proof that the defendant suffered a conviction under section 245, subdivision (a)(1) was not itself enough to demonstrate the crime was a serious felony. (Rodriguez, at pp. 261-262.)

  20. Thank you 8:27.

    Perhaps 2:43 will say he or she is done and quit this tantrum.

  21. I just wish I could be sure 2:43 isn't a recent hire here

  22. But he/she is right. 245 with force likely is not a strike.

  23. 2:11, that is precisely NOT what was said. He said "If 12:24 has any relevant authority in support of his or her position (that 245(a)(1) is not a strike without the personal use enhancement) then I would like to hear about it". Moreover the statement made by 2:43 "It is not necessary to have the personal use of a weapon enhancement to make a 245(a)(1), deadly weapon, a strike" is at best misleading. It is true only if, without using a deadly weapon, one manages to inflict great bodily harm. The implication is that a "bare"
    245 is enough. No, you need a deadly weapon, usually a knife or gun, or gbi, or both.

  24. OK, I give up on you feckin' people. If you sea monkeys are what Worth had to count on no wonder he's in South Lake Tahoe now. But, since I am a lawyer, let me repeat myself, because that's what we do (well, some lawyers just copy stuff without attribution but that's another thread). A violation of Penal Code section 245(a)(1) is a serious felony pursuant to Penal Code section pursuant to Penal Code section 1192.7(c)(31)when the violation of 245(a)(1) is assault with a deadly weapon. A violation of PC 245(a)(1) is not a strike if the violation involves force likely to cause GBI. Now, because there are alternative theories of culpability (i.e. deadly weapon vs. force likely) there is a series of cases in which the evidence adduced at trial is deemed insufficent to establish that the factual basis of the 245 prior was deadly weapon rather than force likely. That is not the same thing as saying that no 245(a)(1) is a serious felony. And by the way, 8:27, we are not done because Rodriguez was abrogated by statute, which you would know if you had Shepardized.
    My other point (Which you, 8:20/8:25, apparently missed completely - and Texas? Federal site? What are you talking about?) is that when a retained defense attorney pleads a client out to a serious felony (or for the sake of argument, a two-three-four felony) then that attorney has, presumably, figured out that maybe things would not work out so well at trial. So the question is, why isn't the DDA, in what sounds like a fairly egregious kind of stabbing, giving up stuff like the GBI enhancement? That's some weak shit, man - my boss would want an explanation (of course, he once convicted a guy of murder w/ special circs when 1) the actual murder happened 7 years previously; 2) There was no body; 3) There was in fact no physical evidence; and 4) victim was a child molester; so we have a high bar) 12:19, that was a tirade, not a tantrum (this one is a rant, FYI) 12:26, I am not qualified to work in Humboldt, as I have never been a defense attorney, I have never been suspended from practice because of moral turp crimes, and I am not a pathological liar who pretends to be in the military. So, to sum up, 245(a)(1) weapon is a serious felony, but proving it up subsequently can be problematic. None of you gits know anything about the law. And I fecking quit - he who washes the head of an ass loses both his time and his soap.


  25. I am not qualified to work in Humboldt, as I have never been a defense attorney, I have never been suspended from practice because of moral turp crimes, and I am not a pathological liar who pretends to be in the military.

    Sounds like you know what is going on in Humboldt Co. alright. Nice to meet you.

  26. Well, you might be qualified to work here, because you are arrogant and speak out of both sides of your mouth, and use far too many words to make your point. If you had not repeatedly implied in your 2:43 post that not every 245 was a strike, as you did note in your 12:05 (am? you are weird) 12/17 post, you would not have been so derided. But since you are up blogging at midnight, maybe
    you like the attention, because
    it appears you arent getting enough. Which makes sense, if you
    are the kind of git who blogs law at 12:15. AM.

    On the other hand, you are clearly an aggressive prosecutor, unlike
    anyone PVG has hired, so you are out.

  27. 2:43's knickers are in a bunch.
    Had he just said he made a small mistake, all would be well.

    he first said that the 245 was going to be a strike.

    when corrected he then used the wrong subsection.

    the point was that some 245's are strikes and some are not. If the DDA doesn't do the job at the time of the plea then it may not be counted as a strike and 2:43 just didn't get it.

  28. newflash 2:43 -

    In People v. Trujillo, S130080 , SUPREME COURT OF CALIFORNIA , 2006 Cal. LEXIS 14358, December 11, 2006, A Defendant's statement recounted in a probation officer's report admitting that defendant had a prior conviction for infliction of corporal injury AND used a weapon could not be considered in determining whether that prior conviction was a serious felony within the meaning of California's Three Strikes Law. The court found that because the DA dismissed a special allegation regarding personal use of a weapon, defendant's prior conviction in which he admitted to have used a weapon COULD NOT BE COUNTED AS A STRIKE BECAUSE OF THE PLEA BARGAIN.

    now are we done? unless the guy admitted that it is a serious felony under 1192.7, because the DDA dismissed the allegation IT IS NOT A STRIKE.

  29. Gosh, 9:38, that would be relevant, if People v. Trujillo were about a 245(a)(1) conviction in which a special allegation of personal use of a weapon was dismissed. But it isn't, you blithering idiot, it is about a PC 273.5 conviction in which the knife allegation was dropped. Trujillo has nothing to do with whether assault with a deadly weapon in violation of PC 245(a)(1) is a strike. You sir, are a moron.

  30. Gosh 2:43 you are about as bright as a BURNED OUT LIGHT BULB. You should READ the case. Why it is relevant is that 245 in and of itself is NOT a strike because it can also be SIMPLY force likely. How you prove it is a strike later on is BY ADMISSIBLE PROOF OF whether or not there is a deadly weapon involved and NOT force likely. How you do that is by NOT dismissing the special allegation OR having the defendant ADMIT at the plea that it is a strike. IF there is only references in the probation report by others than that is hearsay and not admissible (other cites for this other than Trujillo.) Trujillo states that you cannot even use the defendants admission in the report to prove it. Thats why its relevant. Who is the moron?

    Your lack of insight here and refusal to simply apply the law is troubling. Try a little legal analysis. If this is it for you, then hopefully the county you are in doesn't give you really important cases.

    ps. I feel sorry for the Deputy Attorney Generals that probably are overworked fixing your screwups if this is how you practice.

    Have a nice christmas.

  31. p.p.s - forgot to add, that other than an admission at the earlier plea that it is a serious felony or a plea to a special allegation, it may also be proved by other admissible evidence like the preliminary hearing transcript, but it probably doesn't matter does it.

  32. p.p.p.s - or do you think that you know more than Doug Pipes?

    assuming you know who he is...if not, well..........................



    Exerpts rom the Eureka Reporter today:

    Ellebrecht fired 10 to 14 shots at a home, Humboldt County Deputy District Attorney Allan Dollison said.

    “He said he was walking down the street — after he, himself, admitted to have had drank a 12-pack of beer and a fifth of Jack Daniels,” Dollison said, “and, at one point, claimed he (began) shooting at a deer ... with a .22-caliber rifle.

    Nicholas Zingaro was in the home at the time of the shooting, with the couple’s two children — a daughter, who was 8 at the time, and a son, 4.
    Dollison said Ellebrecht was initially charged with shooting at an inhabited dwelling and the negligent discharge of a firearm, and was bound for both charges following his preliminary hearing May 16.

    If convicted of his initial charges, Ellebrecht could have faced a maximum of seven years in state prison, Dollison said.

    However, on July 31, Ellebrecht accepted a plea offer of the negligent discharge of a firearm, Dollison said, which carries a maximum prison exposure of three years.

    Via telephone, Nicholas Zingaro said one of the 14 bullets fired into his home went through his front door, missing his head by 1 inch.

    “My daughter heard the shots and flipped out,” Nicholas Zingaro said. “I grabbed her from her bunk bed and we huddled to the ground.

    “She couldn’t stop crying. We had to call her best friend’s parents. She couldn’t stay at the house. She had to stay at her best friend’s house that night.”

    Nicholas Zingaro said he believed the sentencing to be “light.”

    “Seriously,” Nicholas Zingaro said, “it’s like a slap on the wrist.”

    Dollison described this case in court as “a close call”

    This is a close call? What planet is this guy on. Now don’t you feel safe to know that a guy who fires 14 shots into a home terrifying kids and missing your head by an inch gets 3 years probation.

    Oh yeah...but it counts as a conviction doesn’t it. Dollison, you lazy ass, “JUST TRY THE GODDAMN CASE AND QUIT PLEA BARGAINING.” That is why we pay you get off you worthless butt and do some work!

  34. Maybe I ain't smarter than Doug Pipes - but I can lick him in a fair fight. I am smarter then Bill Gagen though.

  35. Doug Pipes the sentencing guru, works for CDAA, works for Contra Costa DA, written books, sentencing manuals on sentencing, you'd really get in an arm wrestling match with him?

  36. Sentencing manuals...on sentencing? Heck, he must be right smart; any dang fool can write him a sentencing manual on some subject other than sentencing. And so are you saying that it is Mr. Pipes' position that a a person who stands convicted of a assault with a deadly weapon in violation of Penal Code section 245(a)(1) is not subject to sentencing pursuant to Penal Code section 1170.12(c), inasmuch as assault with a deadly weapon is a crime listed as a serious felony in Penal Code section 1192.7(c) at subdivision 31?

    P.S. I could whoop Bernie Witkin too, except he's dead.

  37. You couldn't whup your own ass. Bernie was a good guy, knew him personally. Doug Pipes, know him personally. You...are an idiot.

  38. I take that as a concession that I am in fact correct that assault with a deadly weapon in vioaltion of PC section 245(a)(1)is a serious felony.

  39. unless it's in Humboldt, where very little is a
    felony any more.

  40. Again you are an idiot. No one is saying a 245 a1 assault with a deadly weapon isn't a strike when the person personally used the gun.

    but a 245a1 without a factual basis showing personal use isn't one.

    You are evidently NOT a prosecutor or you would have known Doug Pipes by name and not relied upon a criminal defense attorney's position on the matter.

    You sir are not only wrong, and an are an imposter.

  41. What I get from this is that you can have a 245 without having an assault with a deadly weapon, so if you are going to tell the difference then the person has to admit that it is assault with a deadly weapon and not force likely to produce great bodily injury.

    Why is this so difficult for 2:43, 3:10, 7:22 to wrap his head around.

    Could be he isn't who he says he is.


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